Beating the Brexit – some comfort for dual EEA/UK nationals

Beating the Brexit – some comfort for dual EEA/UK nationals

EEA nationals exercising Treaty rights in the UK can bring in family members meaning a spouse/civil partner or a direct descendant relative such as a child or grandchild or a dependent direct ascendant such as a parent or grandparent without that person requiring entry clearance and without the UK based sponsor having to jump through the hoops of the Immigration Rules. This does not apply to “other family members” such as siblings or unmarried partners and in the event that applications by other family members are refused there is no right of appeal to a Tribunal (see Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC). What about an EEA national who has acquired British citizenship? Does the EEA national retain the status of being an EEA national exercising Treaty rights even though he or she has now qualified for and been granted British citizenship? The question has been placed before the European Court of Justice for a ruling. On 31 May 2017 the Times ran an article in which Richard Ford their Home Affairs correspondent stated as follows:

“The case was referred to the European Court of Justice last year by the High Court after the Home Office rejected an application by Toufik Lounes for permanent residency because his wife was an EU citizen with dual British and Spanish nationality. The advocate-general said that Mr Lounes had the right to stay even though Perla García, his wife, became a British citizen in 2010. The Home Office claimed that by taking British citizenship she lost the right she had to bring her family to the UK under EU laws. Ms García moved to the UK in 1996 and began working full-time at the Turkish Embassy in London in 2004. When she became a British citizen, she retained her Spanish nationality. Mr Lounes arrived in the UK on a six-month visitor visa in January 2010 and overstayed illegally. He began a relationship with Ms García and the couple married in a religious ceremony in 2014, followed by a civil ceremony a few months later. He applied for a residency card on the ground that he was a family member of an EU citizen but was refused and given notice to leave for being an illegal immigrant. The Home Office argued that Ms García was no longer regarded as an EU national because she had British nationality. Mr Bot’s opinion said: “A non-EU national may benefit from a right of residence in the member state in which his EU-citizen family member resided before acquiring the nationality of that member state and developing a family life there.” He said that Ms García did not have rights under the EU’s freedom of movement directive, but under the Treaty on the Functioning of the EU: “Member states must permit EU citizens who are not their nationals to move and reside within their territory with their spouse and, possibly, certain members of their family who are not EU citizens.” The opinion is not binding on a panel of 15 judges who will make a final ruling later in the year. A Home Office spokeswoman said: “The government notes the opinion and we await the court’s judgment.””

The article provoked a substantial number of comments and it is far from clear how long it will take the Justices to deliver their decision but if they follow the submission made by the Advocate General their ruling will need to be taken into account by those formulating our post-Brexit immigration rules. The report suggests that the Justices will follow the Advocate General’s submission. What does he mean by “ and possibly certain members of their family?” Could the ruling reopen the door to other family members currently precluded from an automatic right of appeal against a negative decision?